The following editorial appears on Bloomberg View:
It may come as a surprise to Barack Obama that the commander in chief of the U.S. armed forces does not necessarily get to decide when a war is over. More to the point, it is a disappointment to Muktar Yahya Najee al Warafi – and it should serve as a wake-up call to both the president and Congress.
Warafi, a Yemeni who served as a medic for Taliban forces in Afghanistan in 2001, is currently a detainee at the military prison at Guantanamo Bay, Cuba. He is suing for release on the grounds that the war is over and the law authorizing it (and his detention) has expired. He cites several claims by White House officials, including Obama’s declaration last January that “America’s longest war has come to a responsible and honorable end.”
U.S. District Judge Royce Lamberth wasn’t persuaded by either man’s argument, and last week he denied Warafi’s petition of habeas corpus. As long as hostilities continue, he writes, so does the war’s legal basis, and to claim that Obama’s rhetoric overturns Congress’s intention is to argue “that the president has a peculiar strain of King Midas’s curse: Everything he says turns to law.”
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Lamberth’s ruling exposes the threadbare legal grounds of the administration’s ever-expanding war against Islamic extremism and the Alice-in-Wonderland nature of its detention policies. Although Warafi is not a serious threat – he has been cleared for release by military authorities but remains at Guantanamo because of the ongoing civil war in Yemen – a ruling in his favor might have opened the prison gate for similar challenges by the 60 or so detainees there considered the “worst of the worst.” The need for the president and Congress to overhaul the war authorization and detainee policy remains urgent, especially since Warafi may appeal to the U.S. Supreme Court.
First, Congress must act on the draft authorization for war against Islamic State that Obama sent in February. Democrats and Republicans have valid (and contradictory) objections to the proposal, but they can’t let them overcome the legislative branch’s duty to oversee U.S. war-fighting. Lawmakers need to come up with a compromise that will get Obama’s signature – ideally, one that supersedes the 2001 measure and the 2002 war authorization for Iraq and reconciles the continuing hostilities in those places with the newer threats to global peace.
Second, the U.S. needs to close Gitmo, ship those detainees deemed unthreatening to their home countries or other willing nations, transfer the hard cases to a new maximum-security facility in the domestic U.S., and codify a logical and legally compelling plan for deciding which can be tried where and when. The administration says it is close to submitting a plan to close the prison to Congress, and Senator John McCain, chairman of the Senate Armed Services Committee, is willing to work with it. Still, it will be an uphill fight.
Regardless of the merits of Warafi’s case, Judge Lamberth is surely right about one thing: The war is not over in Afghanistan, and it continues to rage in Iraq, Syria, Yemen, Libya and elsewhere. And there is little doubt that some of the jihadists at Gitmo, if freed, would quickly rejoin that war. All the more reason for the president and Congress to bring more clarity and legitimacy to the U.S.’s role in it.